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Trump Withdraws Federal Guidance on Transgender Bathroom Policies

Last night, President Trump’s administration withdrew federal guidance previously issued by the Office for Civil Rights in a Dear Colleague Letter. The May 2016 guidance under former President Obama allowed students to use school bathrooms that match their gender identity and extended Title IX’s reach to protect students on the basis of sexual identity.

Yesterday’s Dear Colleague Letter was issued jointly by the Education and Justice Departments and states that the issue should not have been handled by the federal government exclusively. It criticized the 2016 guidance for not providing an extensive legal analysis linking its position with Title IX and referenced the ongoing litigation surrounding the guidance. I previously wrote about the inability of the federal government to enforce its guidance since a nationwide
injunction was issued by a federal judge in August.

The Dear Collegue Letter states, in part

“In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved.”

And goes on to state:

“Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.”

It is reported that Betsy DeVos, Education Secretary, requested the addition of this portion to the DCL.

The interpretation of Title IX may ultimately be decided by the Supreme Court in the case of a 17-year old transgender student, Gavin Grimm. Grimm’s lawsuit challenged the bathroom policy of a Virginia school district. A federal appeals court sided with Grimm in April, deferring to the 2016 guidance.

ACLU Senior Staff Attorney Joshua Block told CNN that the Supreme Court will not take into account any administrative guidance in rendering its decision. Regardless of whether the Supreme Court will take prior or current guidance into account, what is clear is that the Trump administration is quickly laying out its legal position on transgender policy noting in press conferences that these issues should be left to the states.

Arguments in the Grimm case are scheduled for March 28th.

A reminder to those administrators at colleges, universities and school districts that this new DCL is guidance alone but there is no doubt that the new guidance adds to the confusion. This release also serves as a window into DeVos as Education Secretary as CNN reports that publicly she supported the guidance, but that this was something “she did not want to do.”

ICS provides a full range of legal and consulting services for institutions of higher education and school districts, including assistance with claims of sex- and gender-based discrimination and harassment. Contact us for more information on ways that we can assist your campus or school.

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